98-CC11-2632 - Rule v. Builders Construction

IN THE TENTH JUDICIAL CIRCUIT COURT
IN AND FOR HARDEE, HIGHLANDS,
AND POLK COUNTY, FLORIDA

Case No.: 98-CC11-2632

Appeal No.: DD-35

ROCKY W. RULE AND FRANCINE E. RULE,

Appellants,

BUILDERS CONSTRUCTION COMPANY,

Appellee.

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OPINION OF THE COURT

This is an appeal from the county court of Polk County, Judge Michael E. Raiden presiding. Appellee Builders Construction brought suit in county court to foreclose a mechanics lien and for damages. The county court entered a final judgment against Appellants and ordered a foreclosure sale of Appellants’ property. Appellants filed a Motion To Set Aside Default, Final Judgment and Foreclosure Sale on September 27, 2000. The motion was denied on March 20, 2001 and the notice of appeal was filed on April 18, 2001. This court has jurisdiction. Fla. R. App. P. 9.110. The ruling of the county court is affirmed.

On July 28, 1998, Appellee filed suit to foreclose on a mechanic’s lien previously lodged against Appellants’ home. The Appellants were served separately and neither filed an answer. Upon motion by Appellee, the clerk entered default judgment against Appellants. Final judgment, including an attorney fee award of $1,500 was entered on December 18, 1998, with foreclosure sale scheduled for January 26, 1999. Fred Watrous, a third party with no connection to any of the litigants, purchased the property on that date. Watrous conveyed to Tiger Properties, Inc., who later conveyed to Select Investments, Inc., the current successor in interest.

A hearing was held on Appellants’ Motion To Set Aside Default, Final Judgment, and Foreclosure Sale. Appellants testified and admitted accepting service of the complaint. The only action taken by Appellants after being served was to write two checks totaling $12,134.00, which was the amount demanded in paragraph 7 of the complaint. However, Appellants failed to address the amount demanded for prejudgment interest, costs, and attorney’s fees. Though Appellee accepted the checks, it also wrote Appellants indicating that the suit would proceed unless the additional demands were paid. Appellants deny receiving this letter but both acknowledged receiving the final judgment after it was entered by the court. It was agreed that Mr. Rule would "take care of it." On January 26, 1999, he wrote a check for the specified amount and attempted to hand-deliver it to Appellee’s attorney, but he was told that it was "too late," and subsequently he returned it. Mr. Rule admitted that he forgot about the judgment against him and the pending foreclosure sale. Furthermore, Mr. Rule acknowledged that the judgment stated that objections to the sale must be filed within ten days of the sale. Mr. Rule admitted that he filed no objection despite having notice and opportunity to do so.

The court denied the Motion holding that it was procedurally barred because the alleged "error could, should, and may have been cured only by timely action through objection, post-trial motion, or appeal – all of which could readily have been undertaken," citing to Rutshaw v. Arakas, 549 So.2d 769 (Fla. 3^rd DCA 1989). In reviewing the lower court’s decision in a rule 1.540(b) motion, the standard is whether the court abused its discretion. Shields v. Finn, 528 So.2d 967 (Fla. 3^rd DCA 1988).

The Court finds that Rutshaw is applicable to the facts in this case and that the lower court did not abuse its discretion in denying Appellants’ motion. Appellants had notice of the final judgment for approximately 19 months and failed to take any action to obtain relief. Therefore, the Court finds no abuse of discretion.

Accordingly, it is ORDERED that the ruling of the county court is AFFIRMED.

ORDERED _____ May 2002.

CHARLES B. CURRY, Chief Judge